The future of the harmonisation project for work health and
safety legislation in Western Australia is not clear.
Notwithstanding the historical Government line that the reforms
will ultimately be adopted, albeit with some key differences
intended to mitigate the effect on WA business, no legislation has
yet been introduced to Parliament. There is also uncertainty as to
the application of the reforms to the mining industry, which
constitutes a significant proportion of industry in the West.
The continued delay in relation to the introduction of the model
legislation has raised concerns in some quarters that the OHS
harmonisation project has stalled indefinitely.
A Regulatory Impact Statement commissioned by the WA government
to assess the impact of regulations and codes of practice on
business has been completed but the results are yet to be announced
The government position to date has been that the WA harmonised
legislation will differ in four key areas:
Whilst penalties for OHS offences will likely be increased, WA
will not be adopting the model legislation's graduated
enforcement scheme. The level of penalties set out in the model
legislation is viewed as overly punitive, particularly in the
context of small business. No specific guidance has been given in
relation to the level at which penalties are proposed to be
Union right of entry
Provisions relating to union official's right of entry will
not be included in the WHS reforms. Instead, WA will retain similar
provisions under the Industrial Relations Act 1979 (WA)
that currently regulate union official's right of entry to
investigate suspected contraventions of safety legislation.
Health and Safety Representatives directing the
cessation of work
Western Australia has indicated that they will not adopt
provisions empowering HSRs to direct the cessation of unsafe work,
on the basis that the right to cease work should properly remain
with the individual worker. Under the current WA OHS legislation a
worker has a right to cease work where they have reasonable grounds
to believe that if they continued to work they would expose
themselves or someone else to a serious and imminent risk or injury
or harm to their health.
Reverse onus of proof
The WA legislation will not include the reverse onus of proof
that applies to allegations of discrimination on safety grounds,
under which the defendant would be required to show that the
dominant or substantial reason for the discriminatory conduct was
The Worksafe Western Australia Commissioner has stated that the
Work Health and Safety Bill for general (i.e. non-mining) industry
has been drafted and is likely to be introduced in 2013, subject to
progress with drafting the corresponding Bill for the mining
However, this stated connection between the progress of the
legislation for general industry and the legislation for mining
raises questions about the likely timeframe for reform, in light of
uncertainty as to the extent to which Western Australia will adopt
the model legislation, and particularly the regulations, in its
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